Jeevan Diesels & Electricals Ltd., Kolkata V. ITO, WD-2(3), KOLKATA, Kolkata

ITA 1206/KOL/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1775 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 7 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-01-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2011-2012
• Appeal Filed On: 27-05-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: G H SEEMA
• Assessee Lawyers: S M SURANA
• Section: 43B; 28; 2

Judgement Text

1 ITA NO.1206/KOL/2016 JEEVAN DIESELS & ELECTRICALS LTD., AYS- 2011-12 , D , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH: KOL KATA () .., . ' # $% % , '() [BEFORE SHRI A. T. VARKEY, JM & DR. A. L. SAINI, A M] I.T.A. NO. 1206/KOL/2016 ASSESSMENT YEAR: 2011-12 JEEVAN DIESELS & ELECTRICALS LTD. (PAN: AAACJ7338M) VS. INCOME-TAX OFFICER, WD-2(3), KOLKATA APPELLANT RESPONDENT DATE OF HEARING 15.01.2018 DATE OF PRONOUNCEMENT .01.2018 FOR THE APPELLANT SHRI S. M. SURANA, ADVOCATE FOR THE RESPONDENT SHRI G. H. SEEMA, ADDL. CIT ORDER PER SHRI A.T.VARKEY, JM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-1, KOLKATA DATED 31.03.2016 FOR AY 2011-12. 2. THE ONLY ISSUE IN DISPUTE IS AGAINST THE ACTION OF LD. CIT(A) IN CONFIRMING THE ADDITION MADE BY THE AO ON ACCOUNT OF UNPAID LIABIL ITY OF EXCISE DUTY U/S. 43B OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS TH E ACT). BRIEFLY STATED FACTS AS OBSERVED BY THE AO ARE THAT WHILE EXAMINING THE BOOKS OF ACC OUNT OF THE ASSESSEE, THE AO FOUND THAT THE ASSESSEE DID NOT PAY RS.88,82,270/- ON ACCOUNT OF CENTRAL EXCISE DUTY OF RS.85,40,594/- AND EMPLOYEES PROVIDENT FUND OF RS.3,41,676/- ON OR BEFORE THE DUE DATE OF FILING OF RETURN OF INCOME. THE ASSESSEE WAS ASKED TO EXPLAIN WHY S UCH AMOUNT SHOULD NOT BE DISALLOWED AS PER PROVISION OF SEC. 43B OF THE ACT AND IN TURN ADDED BACK TO THE TOTAL INCOME OF THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION. THE ASSESSEE EXPLAINED THAT DUE TO SHORTAGE OF FUND, PAYMENT WAS DELAYED. THE EXPLANATION GIVEN B Y THE ASSESSEE WAS NOT ACCEPTABLE TO THE AO, SO IN THE ABSENCE OF EVIDENCE OF PAYMENT ON OR BEFORE FILING RETURN, THE AO ADDED THE SUM OF RS.88,82,270/- TO THE TOTAL INCOME OF TH E ASSESSEE. ON APPEAL, LD. CIT(A) CONFIRMED THE ACTION OF THE AO ON THE SAME GROUND I .E. THE ASSESSEE DID NOT PAY THE CENTRAL EXCISE DUTY OF RS.85,40,594/- ON OR BEFORE THE DUE DATE OF FILING OF RETURN OF INCOME. AGGRIEVED, ASSESSEE IS IN APPEAL BEFORE US. 3. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THR OUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. WE NOTE THAT THE AO HAS DISALLOWED THE CLAIM OF EXCISE DUTY DEDUCTION U/S. 43B OF 2 ITA NO.1206/KOL/2016 JEEVAN DIESELS & ELECTRICALS LTD., AYS- 2011-12 THE ACT ON THE GROUND THAT THE ASSESSEE HAS NOT MAD E THE PAYMENT BEFORE THE DUE DATE OF FURNISHING OF RETURN OF INCOME. THE LD. CIT(A) CON FIRMED THE DECISION OF THE AO. THE ONLY PLEA OF THE LD. AR IS THAT SEC. 43B OF THE ACT CLEARLY STATES THAT ANY SUM PAYABLE BY THE ASSESSEE BY WAY OF TAX, DUTY CESS OR FEE SHALL BE A LLOWED (IRRESPECTIVE OF THE PREVIOUS YEAR IN WHICH THE LIABILITY TO PAY SUCH SUM WAS INCURRED BY THE ASSESSEE ACCORDING TO THE METHOD OF ACCOUNTING REGULARLY EMPLOYED BY HIM) ONLY IN COMPU TING THE INCOME REFERRED TO IN SEC. 28 OF THAT PREVIOUS YEAR IN WHICH SAME IS ACTUALLY PAI D BY HIM. THEREFORE, ACCORDING TO LD. AR, A DIRECTION/OBSERVATION NEEDS TO BE MADE THAT W HEN ANY SUM PAYABLE BY THE ASSESSEE BY WAY OF EXCISE DUTY FOR THIS A.Y IS COMPLIED BY THE ASSESSEE IN ANY SUBSEQUENT A.Y, THEN IT NEEDS TO BE ALLOWED IN THE YEAR IN WHICH THE ASSESS EE HAS MADE THE ACTUAL PAYMENT IRRESPECTIVE OF THE PREVIOUS YEAR IN WHICH THE LIAB ILITY TO PAY SUCH SUM WAS INCURRED BY THE ASSESSEE. NEEDLESS TO SAY, WHEN SEC. 43B OF THE AC T IS CLEAR AND UNAMBIGUOUS THAT WHEN THE ASSESSEE MAKES THE PAYMENT OF TAX/DUTY IN ANY YEAR, THEN THAT SHOULD BE ALLOWED IN THAT ASSESSMENT YEAR WHEN THE ASSESSEE MAKES THE ACTUAL PAYMENT IRRESPECTIVE OF THE PREVIOUS YEAR IN WHICH THE LIABILITY TO PAY SUCH SUM WAS INC URRED BY THE ASSESSEE. WITH THE AFORESAID OBSERVATION, WE DISMISS THE APPEAL OF THE ASSESSEE. 4. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISS ED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 24.01.201 8 SD/- SD/- (DR.A. L. SAINI) (ABY. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 24TH JANUARY, 2018 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT JEEVAN DIESELS & ELECTRICALS LTD., 1 7, GANESH CHANDRA AVENUE, KOLKATA-700 013. 2 RESPONDENT ITO, WARD-2(3), KOLKATA. 3. THE CIT(A) KOLKATA. 4. 5. CIT KOLKATA DR , ITAT, KOLKATA. / TRUE COPY, BY ORDER, SR. PVT. SECRETARY